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ELRCPartially AllowedCause No. 2 of 2018 (consolidated with Cause No. 3 of 2018)· [2020] KEELRC 1413 (KLR)

Alex Makau & 343 others v St Mary’s Mission Hospital Limited & another [2020] KEELRC 1413 (KLR)

Employment and Labour Relations Court
6 March 2020
2,987 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that hospital employees unfairly dismissed during a hostile ownership takeover deserve compensation, even though reinstatement was refused.

What this practically means

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Executive summary

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This consolidated Employment and Labour Relations Court claim (Cause No. 2 of 2018 by Elementaita staff and Cause No. 3 of 2018 by Langata staff, heard together) arose from the violent takeover of St. Mary's Mission Hospitals in Langata (28th December 2017) and Elementaita (19th January 2018) by the respondents, acting in execution of Sila J.'s judgment of 28th September 2017 in Nakuru ELC No. 224 of 2010 (consolidated with ELC No. 238 of 2012) concerning ownership of the hospitals. Employees were evicted at about 5.00 am in Nairobi, staff at Elementaita fled amid panic and vandalism before the takeover, and interim orders of 4th January 2018 preserving employment were disobeyed. The claimants sought permanent injunctions, reinstatement, preservation of employment and payment of salaries. The respondents denied the claims, asserting that some employees absconded, were dismissed for failing to furnish employment records, or held expired contracts. The court held the claimants were blameless victims of leadership wrangles, that the violent takeover caused the loss of employment, and that dismissals without disciplinary process under Sections 41, 43 and 45 of the Employment Act amounted to unfair termination. Reinstatement was refused as the circumstances had changed and no exceptional circumstances were established. Each claimant was awarded January 2018 salary, one month's salary in lieu of notice and six months' salary as compensation, with dismissed employees paid per the award, re-employed or withdrawing employees excluded, and respondents jointly and severally liable for costs.

Key legal issues

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01

Whether the claimants were unfairly terminated

Holding

Yes - the claimants lost their jobs as a direct consequence of the respondents' violent takeover and disobedience of court orders preserving employment, and dismissals flouted Sections 41, 43 and 45 of the Employment Act

Reasoning

The court found the violent manner of takeover caused the loss of employment. Despite orders of 4th January 2018 preserving employment, respondents dismissed employees without disciplinary process as required by Sections 41, 43 and 45 of the Employment Act. Employees were blameless victims of leadership wrangles between founder members.

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02

Whether reinstatement was an appropriate remedy

Holding

No - reinstatement requires exceptional circumstances which were not established, given the large numbers involved and changed circumstances

Reasoning

Section 49(4) permits reinstatement only in very exceptional cases. Here many employees had moved on, some were re-employed, some withdrew from the suit, and the hospitals had recruited new staff, making blanket reinstatement impractical.

p. 5
03

Whether employees who absconded or were dismissed after the takeover were to blame

Holding

No - the panic, confusion and vandalism resulted from the violent takeover, and criminal acts could not be blamed on all employees indiscriminately

Reasoning

The Medical Director testified that a security committee briefing caused panic and a breakdown of law and order. The court held the situation was caused by the violent takeover and that vandalism, though criminal, could not be attributed indiscriminately to all employees.

p. 5

Legal principles established

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  • Dismissal without adherence to Sections 41, 43 and 45 of the Employment Act (disciplinary process) constitutes unfair termination
  • Reinstatement under Section 49(4) of the Employment Act is discretionary and must be granted only in very exceptional cases

Court orders

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  1. 1.Each claimant awarded salary for January 2018
  2. 2.Each claimant awarded one month's salary in lieu of notice
  3. 3.Each claimant awarded 6 months' salary as compensation for unfair termination
  4. 4.All employees who were dismissed to be paid per the award as the dismissal did not comply with the Employment Act
  5. 5.Employees who were re-employed and/or withdrew from the proceedings excluded from the award
  6. 6.Respondents jointly and severally to pay the claimants' costs

Authorities

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Legislation

  • Employment ActSections 41, 43, 45
  • Employment ActSection 49(4)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act and Employment and Labour Relations Court Act); matters arose from termination of employment following takeover of the hospitals

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Alex Makau & 343 others v St Mary’s Mission Hospital Limited & another [2020] KEELRC 1413 (KLR)", Case Analysis (2020). Cause No. 2 of 2018 (consolidated with Cause No. 3 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1413/eng@2020-03-06

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.